January 10, 2009

One question that has been raised is the extent to which the recent California Supreme Court decision on Saint James Long Beach and The Episcopal Church will apply to the secessionist "Anglican Diocese of San Joaquin, of but not in the Southern Cone."

It is true that there is no explicit constitutional language describing the process by which a diocese can become independent of The Episcopal Church once it has entered into union with it. Some might say that silence implies consent. However, as I have noted in the past, exactly the same silence is a feature of the Constitution of the United States, and the Supreme Court has ruled (Texas v. White 74 U.S. 700 (1869)) that secession is not possible when a "union" is thus established — certainly not unilaterally without the consent of Congress. Details of Article V of the Constitution of the Episcopal Church are in many respects reminiscent of Article IV.3 of the US Constitution — though far wordier. The use of one word, union, is not without significance.

The governing documents of The Episcopal Church do provide a mechanism for non-domestic missionary dioceses to become independent, which requires the consent of the General Convention. Surely the independence of a domestic diocese — even if it were possible — would require at least as much consent.

It will be interesting to see how this case is argued, and the cases in Pittsburgh, Fort Worth and Quincy, if indeed argued they must be.

Given the history of how the Dio of SJ was created, its earlier missionary status, and so on, I think it will be fairly clear to see it as related to and constituent of The Episcopal Church. The same will be said of Ft Worth and Pittsburgh and Quincy -- though not necessarily missionary dioceses, all of them were formed by the division of a larger Episcopal diocese, according to the Constitution and Canons of the church.

The California Supreme Court clearly stated that they find the Dennis Canon persuasive and that they are not going to look into how it was passed. I think this is the statement that will play big in the SJ litigation. The Dennis Canon references the trust for the diocese and for the national church. Following this language it is hard to imagine that they wouldn't hold that the property belongs to TEC and the continuing Episcopalians.

I do not think that the historic status of an entity has any importance by reading the high court decision. Dio SJ could have been formerly a Russian Orthodox diocese, divided off from another TEC diocese, or grown from scratch as a TEC missionary diocese. What is important to the high court is that at the moment of afiliation with TEC the diocese acceded to the Constitution and Canons of the Episcopal Church which say that the the real and personal property are held in trust for the mission and ministry of TEC. Period. How the parish or diocese came to be affiliated with TEC is a matter of church polity, and the court is not going to get involved in church polity.

I have to have faith that those aspects of a court ruling will be consistent for you all. I know that does not always happen, but lately it seems to be what is happening!

I think you are correct, Dahveed, on the crucial question of affiliation. To pick up the analogy I've used before, it is at the moment of marriage that (in California, for instance) community property takes effect. It doesn't matter -- as far as the law is concerned -- how the couple met, how long they were engaged, etc.

At the same time, however, I've long noted that court decisions will often bring in such persuasive side issues to bolster the case. Just as the dissidents will try to do the same when the facts of the history seem to them to be on their side. ("This was a colonial church! We were built entirely with congregational money! etc.) These sidebar arguments don't settle the case, but they do often appear in the mix. In the case of SJ, I think the history favors TEC, to the extent that it demonstrates that their affiliation was entered into with open eyes, and voluntarily agreed to the accession which they later removed -- contrary to the agreement they had formerly made.

I think the California Courts will rule consistently. And I think the same will happen in Virginia, where the state statute has introduced an anomaly.

I wrote this note prior to being aware of Iker's strange letter to the PB. He strikes me as like the King of the Moon in Baron Munchausen, the one who could detach his head from his body and so be in two places at once.

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